Citation Nr: 0841255
Decision Date: 12/01/08 Archive Date: 12/09/08
DOCKET NO. 05-02 838 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in
Philadelphia, Pennsylvania
THE ISSUE
Entitlement to service connection for residuals of a left toe
injury.
ATTORNEY FOR THE BOARD
C. White, Associate Counsel
INTRODUCTION
The veteran served on active duty from March 1955 to March
1959.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an April 2003 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Philadelphia, Pennsylvania, which denied service connection
for residuals of a left toe injury.
The veteran requested a personal hearing before a Member of
the Board at the RO in his December 2004 substantive appeal.
The veteran failed to report for his scheduled hearing in
August 2006. The request therefore is deemed withdrawn.
38 C.F.R. § 20.704(d).
There was a September 2006 Board decision which had reviewed
this claim based on the evidence of record in the claims file
at that time. After the issuance of the September 2006 Board
decision, correspondence containing new evidence with regard
to the veteran's claim was associated with the claims file.
Thereafter, a subsequent Board decision, dated August 2007,
vacated the September 2006 decision in accordance with
38 U.S.C.A. § 7104(a) and 38 C.F.R. § 20.904.
In a July 2007 letter, the VA informed the veteran of his
right to initial RO consideration of the newly submitted
evidence. In a response, dated August 2007, the veteran
indicated he wished to exercise that right and have his case
remanded to the RO. Thereafter, the veteran's case was
reconsidered by the RO with the newly submitted evidence, and
a supplemental statement of the case was issued in April
2008. Upon submission of further new evidence, the veteran's
claim was reconsidered again and supplemental statements of
the case were issued in June 2008 and September 2008.
Because all newly submitted evidence has been considered by
the RO, this claim is now properly before the Board. As
such, the Board will proceed with a decision on this appeal.
FINDING OF FACT
There is no competent evidence showing the veteran's current
left toe disability is related to disease or injury incurred
in or aggravated by active service.
CONCLUSION OF LAW
A left toe disability was not incurred in or aggravated by
active service. 38 U.S.C.A. §§ 1101, 1131, 1154, 5107 (West
2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2008).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Service connection
The Board has thoroughly reviewed all the evidence in the
veteran's claim folder. Although the Board has an obligation
to provide reasons and bases supporting this decision, there
is no need to discuss, in detail, the evidence submitted by
the veteran or on his behalf. See Gonzales v. West, 218 F.3d
1378, 1380-81 (Fed. Cir. 2000) (the Board must review the
entire record, but does not have to discuss each piece of
evidence). The analysis below focuses on the most salient
and relevant evidence and on what this evidence shows, or
fails to show, on the claim. The veteran must not assume
that the Board has overlooked pieces of evidence that are not
explicitly discussed herein. See Timberlake v. Gober, 14
Vet. App. 122 (2000) (the law requires only that the Board
address its reasons for rejecting evidence favorable to the
veteran).
The Board must assess the credibility and weight of all
evidence, including the medical evidence, to determine its
probative value, accounting for evidence which it finds to be
persuasive or unpersuasive, and providing reasons for
rejecting any evidence favorable to the claimant. Equal
weight is not accorded to each piece of evidence contained in
the record; every item of evidence does not have the same
probative value. When all the evidence is assembled, VA is
responsible for determining whether the evidence supports the
claim or is in relative equipoise, with the appellant
prevailing in either event, or whether a preponderance of the
evidence is against a claim, in which case, the claim is
denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
The veteran contends that he incurred a left toe disability
as the result of dropping an engine housing onto his foot
while performing maintenance aboard the U.S.S. Strong.
Service connection may be established for a disability
resulting from disease or injury incurred in or aggravated by
active service. 38 U.S.C.A. § 1110. For the showing of
chronic disease in service there is required a combination of
manifestations sufficient to identify the disease entity, and
sufficient observation to establish chronicity at the time.
38 C.F.R. § 3.303(b). If chronicity in service is not
established, a showing of continuity of symptoms after
discharge is required to support the claim. Id. Service
connection may be granted for any disease diagnosed after
discharge, when all of the evidence establishes that the
disease was incurred in service. 38 C.F.R. § 3.303(d).
In order to establish service connection for the claimed
disorder, there must be (1) medical evidence of a current
disability; (2) medical evidence, or in certain circumstances
lay evidence, of in-service incurrence or aggravation of a
disease or injury; and (3) medical evidence of a nexus
between the claimed in-service disease or injury and the
current disability. See Hickson v. West, 12 Vet. App. 247,
253 (1999).
The Board acknowledges that the veteran is competent to give
evidence about what he experienced; for example, he is
competent to discuss an inservice injury. See, e.g., Layno
v. Brown, 6 Vet. App. 465 (1994). He is not, however,
competent to diagnose a medical disorder or render an opinion
as to the cause or etiology of any current disorder because
he does not have the requisite medical knowledge or training.
See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992);
Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (noting that
competent medical evidence is required when the determinative
issue involves medical etiology or a medical diagnosis,
whereas lay testimony may suffice if the determinative issue
is factual in nature).
The veteran has submitted private medical records dating as
early as 1992 showing that he has ongoing treatment for a
variety of foot disorders. Among other things, the records
state that the veteran has deformities of his toes, including
hammertoe of the left toes. The Board finds that the medical
evidence of record establishes that the veteran has a current
disability with regard to his left toes. Therefore, the
Board will move on to consider whether in-service incurrence
or aggravation of an injury or disease has been shown.
After a full review of the record, the Board cannot find
evidence that the veteran incurred a left toe disability in
service. The veteran's service treatment records are
contained in the claims file, including treatment records
from his time aboard the U.S.S. Strong. There is no mention
of an injury of the left toes or foot or any treatment for a
toe or foot related problem. At the veteran's March 1959
separation from service physical examination, no mention was
made of any left toe problem. The Board acknowledges that
pes planus was noted on this examination, however, there is
no post-service medical evidence demonstrating any current
disability with regard to pes planus. None of the left foot
or toe conditions for which a current disability is
demonstrated are reflected in the veteran's service treatment
records.
The first post-service private medical record is dated August
1992, thirty three years after the veteran left service.
Reports from August 1992 and September 1992 indicate that the
veteran's foot disabilities are a result of his diabetes. A
March 1993 private medical record indicates that the
deformities across the veteran's metatarsals are due to his
occupation. None of the medical evidence submitted after the
issuance and vacatur of the September 2006 Board decision
demonstrates that the veteran's current foot and toe
disabilities were incurred in or aggravated by service. In
fact, various records suggest that the veteran's current
pathology is related to his history of diabetes and
neuropathy. See August 2006 Treatment Note from K.M.Z., DPM;
June 2006 VA Medical Record (stating that the patient was
educated on preventative foot care and diabetes mellitus);
April 2001 VA Medical Record (noting "perphieral (sic)
neuropathy-feet feel much better at this time, was seen in
podiatry"); October 2000 VA Medical Record (also noting
peripheral neuropathy, and stating "feet feel much better at
this time"). See generally VA Medical Records July 1999
through May 2005 (reflecting annual diabetic foot exams).
The sole statement that the disability was incurred in
service is the veteran's description of the incident. This
is insufficient to support a claim for service connection.
The evidence of record must "establish that a particular
injury or disease resulting in disability was incurred
coincident with service in the Armed Forces..." 38 C.F.R.
§ 3.303(a). Without such evidence in the record, the Board
finds that the preponderance of the evidence is against a
finding of inservice incurrence or aggravation of a left foot
or toe disability.
Although the veteran is entitled to the benefit of the doubt
where the evidence is in approximate balance, the benefit of
the doubt doctrine is inapplicable where, as here, the
preponderance of the evidence is against the claim for
service connection for residuals of a left toe injury. See
Gilbert, 1 Vet. App. at 53.
II. Veterans Claims Assistance Act
With respect to the veteran's claim, VA has met all statutory
and regulatory notice and duty to assist provisions. See 38
U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38
C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326.
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a)
(West 2002 & Supp. 2007); 38 C.F.R. § 3.159(b) (2007);
Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA
notice must inform the claimant of any information and
evidence not of record (1) that is necessary to substantiate
the claim; (2) that VA will seek to provide; and (3) that the
claimant is expected to provide. VCAA notice should be
provided to a claimant before the initial unfavorable agency
of original jurisdiction (AOJ) decision on a claim.
Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v.
Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).
In March 2006, the United States Court of Appeals for
Veterans Claims (Court) issued its decision in the
consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet.
App. 473 (2006). The Court in Dingess/Hartman held that the
VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R.
§ 3.159(b) apply to all five elements of a "service
connection" claim. As previously defined by the courts,
those five elements include: (1) veteran status; (2)
existence of a disability; (3) a connection between the
veteran's service and the disability; (4) degree of
disability; and (5) effective date of the disability. Upon
receipt of an application for "service connection,"
therefore, VA is required to review the information and the
evidence presented with the claim and to provide the claimant
with notice of what information and evidence not previously
provided, if any, will assist in substantiating or is
necessary to substantiate the elements of the claim as
reasonably contemplated by the application. This includes
notice that a disability rating and/or an effective date will
be assigned in the event of an award of benefits sought.
With regard to this claim, VA sent letters dated March 2003,
May 2005, and January 2008, informing the veteran of what
evidence was required to substantiate his claim and of his
and VA's respective duties for obtaining evidence. Since the
Board has concluded that the preponderance of the evidence is
against the claim for service connection, any questions as to
the appropriate disability rating or effective date to be
assigned are rendered moot, and no notice is needed. See
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).
Nonetheless, VA sent a letter to the veteran, dated August
2006, informing him that a disability rating and effective
date would be assigned in the event of an award of benefits
sought. See also January 2008 VCAA Letter.
In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court
held that compliance with 38 U.S.C.A. § 5103 required that
VCAA notice be provided prior to an initial unfavorable AOJ
decision. In this case, because not every element of VCAA
notice was given prior to the initial AOJ adjudication
denying the claims, the timing of the notice does not comply
with the express requirements of Pelegrini. However, the
Board notes that a VCAA timing defect can be cured by
issuance of fully compliant notification followed by a
readjudication of the claim. See Prickett v. Nicholson, 20
Vet. App. 370, 376 (2006). Here, the Board finds that the
defect with respect to the timing of the VCAA notice was
harmless error. Although some elements of VCAA notice were
first provided to the appellant after the initial
adjudication, subsequent notice complied fully with the
requirements of 38 U.S.C.A. § 5103(a), 38 C.F.R. § 3.159(b),
and Dingess/Hartman. Moreover, the claims were readjudicated
after such fully compliant notice was given, and supplemental
statements of the case were provided in April 2008, June
2008, and September 2008. Therefore, the Board finds that
the veteran has been provided with every opportunity to
submit evidence and argument in support of his claim, and
that not withstanding Pelegrini, deciding this appeal would
not be prejudicial to him.
The Board also concludes that VA's duty to assist has been
satisfied. The veteran's service treatment records and VA
medical records are in the file. Private medical records
identified by the veteran have been obtained, to the extent
possible. The veteran has at no time referenced outstanding
records that he wanted VA to obtain or that he felt were
relevant to the claim.
The duty to assist also includes providing a medical
examination or obtaining a medical opinion when such is
necessary to make a decision on the claim, as defined by law.
The Board concludes an examination was not needed in this
case because the only evidence indicating the veteran
"suffered an event, injury or disease in service" was
contained in his own lay statements. Such evidence is
insufficient to trigger VA's duty to provide an examination.
The Court has held, in circumstances similar to this, that
where the supporting evidence of record consists only of lay
statements, VA is not obligated to provide an appellant with
a medical nexus opinion. See Duenas v. Principi, 18 Vet.
App. 512, 519 (2004) (finding no prejudicial error in Board's
statement of reasons or bases regarding why a medical opinion
was not warranted because there was no reasonable possibility
that such an opinion could substantiate the veteran's claim
because there was no evidence, other than his own lay
assertion, "'reflect[ing] that he suffered an event,
injury[,] or disease in service' that may be associated with
[his] symptoms"). See also Paralyzed Veterans of America v.
Secretary of Veterans Affairs, 345 F.3d 1334, 1355-57 (Fed.
Cir. 2003) (holding that 3.159(c)(4)(i) is not in conflict
with § 5103A(d), and that evidence of record "establishing
that the veteran suffered an event, injury, or disease in
service," is required to trigger VA's duties pursuant to
§ 5103A(d)); Wells v. Principi, 326 F.3d 1381, 1384 (Fed.
Cir. 2003) (holding that the Secretary's obligations under
§ 5103A to provide a veteran with a medical examination or to
obtain a medical opinion are triggered if the evidence of
record demonstrates "some causal connection between his
disability and his military service"). There is no
reasonable possibility that a medical opinion would aid in
substantiating the appellant's claim here since it could not
provide evidence of a past event.
As there is no indication that any failure on the part of VA
to provide additional notice or assistance reasonably affects
the outcome of this case, the Board finds that any such
failure is harmless. See Mayfield v. Nicholson, 19 Vet. App.
103 (2005), rev'd on other grounds, Mayfield v. Nicholson,
444 F.3d 1328 (Fed. Cir. 2006).
ORDER
Entitlement to service connection for residuals of a left toe
injury is denied.
____________________________________________
MICHELLE L. KANE
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs